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CIRCULAR No. 04/2004/TT-BBCVT OF NOVEMBER 29, 2004 GUIDING THE IMPLEMENTATION OF A NUMBER OF ARTICLES OF THE GOVERNMENT'S DECREE No. 142/2004/ND-CP OF JULY 8, 2004 PROVIDING FOR THE SANCTIONING OF ADMINISTRATIVE VIOLATIONS IN POST, TELECOMMUNICATIONS AND RADIO FREQUENCIES

Pursuant to the 2002 Ordinance on Handling of Administrative Violations;

Pursuant to the Government's Decree No. 134/2003/ND-CP of November 14, 2003 detailing the implementation of a number of articles of the 2002 Ordinance on Handling of Administrative Violations;

Pursuant to the Government's Decree No. 142/2004/ND-CP of July 8, 2004 providing for the sanctioning of administrative violations related to post, telecommunications and radio frequencies;

Pursuant to the Government's Decree No. 90/2002/ND-CP of November 11, 2002 defining the functions, tasks, powers and organizational structure of the Ministry of Post and Telematics;

The Ministry of Post and Telematics hereby provides implementation guidance as follows:

I. GENERAL PROVISIONS

1. Scope of regulation:

This Circular guides the implementation of a number of articles of the Government's Decree No. 142/2004/ND-CP of July 8, 2004 providing for the sanctioning of administrative violations related to post, telecommunications and radio frequencies (hereinafter called "Decree" for short) with regard to acts of administrative violation in the domains of post, telecommunications and radio frequencies and the sanctioning thereof.

2. Subjects of application:

All Vietnamese and foreign individuals and organizations involved in post, telecommunication and radio frequency activities in Vietnam, that commit acts of administrative violation defined in the Decree and guided in this Circular, except for cases mentioned at Point 3, Section I of this Circular.

3. Cases not subject to administrative sanctioning:

3.1. Foreign individuals or organizations are entitled to the immunity from administrative sanctions under the provisions of the Ordinance on privileges and immunities for Vietnam-based diplomatic missions, consulates and representative offices of international organizations;

3.2. Administrative violators are under 14 years old;

3.3. Cases defined in Clause 5, Article 3 of the Decree;

3.4. The statute of limitations for sanctioning administrative violations according to the provisions of Clauses 1, 2, 3 and 5, Article 4 of the Decree expires;

3.5. The acts of violation show signs of crimes.

4. Sanctioning principles:

The principles for administrative sanctioning of acts of administrative violation related to post, telecommunications and radio frequencies shall comply with the provisions of Article 3 of the 2002 Ordinance on Handling of Administrative Violations (hereinafter called the "Ordinance" for short), Article 3 of Decree No. 134/2003/ND-CP of November 14, 2003 detailing the implementation of a number of articles of the Ordinance and Article 3 of the Decree.

II. ACTS OF ADMINISTRATIVE VIOLATION RELATED TO POST, TELECOMMUNICATIONS AND RADIO FREQUENCIES

1. The sanctioning of acts of administrative violation defined in Clause 1 of Article 6; Clause 1 of Article 8; Clauses 1, 2 and 3 of Article 9; Clause 1 of Article 10; Clause 1 of Article 11; Clause 1 of Article 12; Clause 1 of Article 17; Clause 1 of Article 18; Clause 1 of Article 26 and Clause 1 of Article 27 of the Decree shall apply as follows:

1.1. Caution shall be imposed for first-time minor acts of administrative violation involving extenuating circumstances or acts of administrative violation committed by minors aged between full 14 years and 16 years.

The sanctioning form of caution shall be decided in writing.

1.2. Fines shall be imposed for acts of administrative violation other than those guided at Point 1.1 above.

2. The sanctioning of acts of violation defined at Point f, Clause 2, Article 6 of the Decree shall apply to:

Individuals and organizations that change or relocate mail boxes, facilities or equipment, or material foundations of public post networks without permission of competent managing persons.

3. The sanctioning of acts of violation defined at Point e, Clause 3, Article 6 of the Decree shall apply in cases where:

Individuals, organizations or enterprises dealing in mail delivery service use the phrase "Vietnam Post" (Buu Chinh Viet Nam) for the purpose of serving their own production and/or business activities without permission of Vietnam post enterprises.

4. The sanctioning of acts of violation defined at Point b, Clause 1, Article 7 of the Decree shall apply to:

4.1. Employees of Vietnam post enterprises or mail delivery service business enterprises who keep mails, postal matters and/or parcels without delivering or deliver them late to service users;

4.2. Individuals who enter into contracts with enterprises for performance of the task of delivering mails, postal matters and/or parcels but fail to deliver them or deliver them late to service users.

5. The sanctioning of acts of violation defined in Clause 2, Article 7 of the Decree is guided as follows:

5.1. Incompetent persons who commit acts of violation shall be administratively sanctioned according to the provisions of Clause 2, Article 7 of the Decree.

5.2. Competent persons who commit acts of violation while on official duty shall be disciplined for breaching duty regulations according to law provisions on officials and public employees.

6. The sanctioning of acts of violation defined at Point a, Clause 3, Article 7 of the Decree shall apply to:

Organizations and individuals that commit acts of delaying, refusing or shirking the execution of competent State agencies' decisions on requisition of means and/or equipment for transportation or freeing of official dispatches, documents, mail bags, postal matters and/or parcels en route in such emergency cases as storm, flood, natural calamity, fire or other catastrophes.

7. Information security measures defined in Clause 4, Article 7 of the Decree are guided as follows:

Information security measures which Vietnam post enterprises have to apply when transporting or exploiting bags and/or parcels of specialized post networks include priority exploitation and transportation of mail bags and packages, postal matters and parcels; application of measures to ensure post safety and information confidentiality at all stages of the exploitation and transportation process.

8. The sanctioning of acts of violation defined at Point a, Clause 2, Article 8 of the Decree shall apply to:

Employees of Vietnam post enterprises or mail delivery service business enterprises who unlawfully open or change or commit acts of fraudulently substituting the contents of mails, postal matters or parcels of service users in the course of exploiting and transporting mail bags or packages, postal matters or parcels.

9. The sanctioning of acts of violation defined at Point a, Clause 3, Article 9 of the Decree shall apply in cases where:

9.1. The senders add or substitute at their own will articles and/or goods in the postal matters or parcels after the employees of service- providing enterprises have completed procedures to check the contents thereof.

9.2. The employees of service-providing enterprises connive with senders in adding or substituting articles and/or goods in the postal matters or parcels. In this case, administrative sanctions shall be imposed on both the employees of the enterprises and the senders.

10. The sanctioning of acts of violation defined at Point b, Clause 3, Article 9 of the Decree shall apply in cases where:

10.1. Individuals or organizations commit acts of preventing, obstructing or causing difficulties to service users when the latter lawfully use post or mail delivery services;

10.2. Individuals or organizations commit acts of preventing, obstructing or causing difficulties to Vietnam post enterprises or mail delivery business service enterprises when the latter provide post or mail delivery services to service users in strict compliance with law provisions.

11. The handling of acts of administrative violation at Point f, Clause 3, Article 9 of the Decree is guided as follows:

When detecting money or foreign exchange in mails, postal matters or parcels sent from overseas to Vietnam, the persons with sanctioning competence shall make written records of violations and issue decisions on sanctioning of administrative violations. If one year after their issuance, such sanctioning decisions cannot be handed to the sanctioned persons because they don't show up to receive and their addresses cannot be identified or for other objective reasons, the persons having issued the sanctioning decisions shall issue decisions to stop the execution of principal sanctioning forms, except for the form of confiscation of violations' material evidences (money, foreign exchange) according to the provisions of Clause 3, Article 22 of the Government's Decree No. 134/2003/ND-CP of November 14, 2003 and shall fill in the procedures for transfer of such money and/or foreign exchange amounts into the finance agencies' custody accounts opened at the State treasuries according to Item e, Point 1.1, Section III of the Finance Ministry's Circular No. 72/2004/TT-BTC of July 15, 2004 guiding the management and handling of confiscated material evidences and means of administrative violations for expropriation into the State's funds.

12. The sanctioning of acts of violation defined at Point a, Clause 4, Article 9 of the Decree is guided as follows:

12.1. Individuals or organizations that lose service users' mails, postal matters or parcels sent through the public post network or mail delivery network but that are not handled according to law provisions shall, apart from being sanctioned according to the provisions of this point, have to pay damage compensations (if any) to service users under law provisions.

12.2. Individuals or organizations that lose mails, postal matters or parcels of the Party, State agencies or armed force units sent via the specialized post networks shall not be sanctioned for administrative violations according to this point but shall be transferred to public security agencies for investigation and handling.

13. The sanctioning of acts of violation defined at Point d, Clause 3 and Clause 7 of Article 9 of the Decree is guided as follows:

13.1. The sanctioning of acts of sending or agreeing to send mails, postal matters or parcels that contain inflammable, explosive, dangerous, unhygienic objects or substances or environment pollutants shall apply only to the mails, postal matters or parcels accepted for sending by employees of Vietnam post enterprises or mail delivery service business enterprises;

13.2. In cases where mails, postal matters or parcels sent from overseas into Vietnam contain objects and/or goods banned from import; explosive, inflammable, dangerous, unhygienic objects or substances or environment pollutants, the competent persons shall make written records of the administrative violations right at the places where such violations are detected and confiscate or destroy material evidences of the violations according to the provisions of Article 61 of the Ordinance.

14. The sanctioning of acts of violation defined at Point b, Clause 1, Article 10 of the Decree shall apply in cases where:

Vietnam Post or post service agents sell in the issuance period postage stamps not at the prices preprinted on their surface, except for postage stamps bearing cancellation marks;

The provisions of Point b, Clause 1, Article 10 of the Decree shall not apply to individuals or organizations that sell assorted postage stamps for philatelic purpose.

15. The sanctioning of acts of violation defined at Point a, Clause 2, Article 10 of the Decree shall apply to:

Individuals and organizations that circulate postage stamps subject to withdrawal decisions of competent State agencies, except for cases of withdrawal of postage stamps upon the expiry of the issuance period.

16. The sanctioning of acts of violation defined at Point c, Clause 2, Article 10 of the Decree shall apply to:

Individuals and organizations that collect postage stamps banned from circulation in Vietnam for the purpose of propaganda against the State of the Socialist Republic of Vietnam, smearing the regime, breaching ethics, fine traditions and customs, provoking or sowing hostility among nations.

17. Emergency and support service telephone numbers defined at Point b, Clause 1, Article 12 of the Decree include:

Police (113); fire brigade (114); ambulance (115); local phone number inquiries (116) and phone numbers of other agencies according to regulations of the Ministry of Post and Telematics.

18. The sanctioning of acts of violation defined at Point d, Clause 3, Article 12 of the Decree shall apply:

In cases where telecommunications enterprises stop or suspend the provision of telecommunications services in order to change the configuration of the network, change equipment, equipment system or telephone numbers, thereby raising the switchboard capacity without notifying the service users in advance according to law provisions.

Sanctions shall not be imposed for cases of stopping or suspending the provision of services due to technical errors or force majeure circumstances.

19. Acts of violation defined at Point c, Clause 3, Article 13 of the Decree are understood as follows:

Acts of spreading viruses, spam emails or programs dangerous for telecommunications networks that threaten to block or impair the networks.

20. Acts of violation defined at Point d, Clause 2, Article 17 of the Decree are understood as follows:

Acts committed by organizations or individuals that exploit or use radio transmitters under the names or with call-outs or identification numbers of other radio stations that have been granted permits for the use of radio frequencies and radio transmitters.

21. The sanctioning of acts of violation defined at Point f, Clause 2, Article 17 of the Decree shall apply as follows:

Sanctions shall be imposed for administrative violations related to one radio frequency for each time of committing act of transmitting wrong frequencies already prescribed in the radio frequency permits.

22. The sanctioning of acts of violation defined at Point b, Clause 3, Article 17 of the Decree shall apply to:

Individuals and organizations that employ persons without professional diplomas and/or certificates issued or recognized by competent agencies according to regulations in order to use radio frequency equipment that require professional diplomas and/or certificates.

23. The sanctioning of acts of violation defined at Point e, Clause 3, Article 17 of the Decree is guided as follows:

Equipment that fail to satisfy the requirements on technical criteria under regulations of competent State agencies include equipment bearing no electromagnetic compatibility stamps (for equipment requiring the affixture of such stamps), equipment that fail to meet technical criteria under regulations of the Ministry of Post and Telematics, regulations of the State of the Socialist Republic of Vietnam or international regulations already recognized by Vietnam.

24. The provisions of Point b, Clause 3, Article 18 of the Decree are understood as follows:

National-scale exclusive telecommunications networks, special-use telecommunications networks or radio/television broadcasting frequency channels or other radio transmitting-receiving stations mean networks and stations that have been granted radio frequency permits by competent State agencies and operate throughout the country.

25. The sanctioning of acts of violation defined at Point a, Clause 1, Article 20 of the Decree shall apply to:

Individuals and organizations that import telecommunications equipment or manufacture telecommunications equipment in the country and sell them on the Vietnamese market or that connect to telecommunications networks telecommunications equipment without standard compatibility certificates nor electromagnetic compatibility certificates or with such certificates that have already expired for over 30 days.

Point a, Clause 1, Article 20 of the Decree shall not apply to the systems of distribution, agents, shops or users.

III. PROCEDURES AND COMPETENCE FOR SANCTIONING ADMINISTRATIVE VIOLATIONS

1. The procedures for application of the principal sanctioning forms (caution or fine) shall comply with the provisions of Article 32 of the Decree.

2. In cases where one person commits many acts of administrative violation, if the sanctioning form and level applicable to each of those acts all come under the sanctioning competence of one authority, such authority shall issue sanctioning decisions. If at least one of the acts of violation is subject to the sanctioning form and level that fall under the competence of a higher authority, the entire dossiers must be transferred to the competent authority for sanctioning; if a violation act falls under sanctioning competence of another agency, a separate dossier on such act shall be made and transferred to such competent agency for sanctioning.

3. In cases where many persons join together in committing one or many acts of violation, only one common minutes is required and only one common sanctioning decision shall be issued, which clearly inscribes the sanctioning form and level applicable to each person. All these persons involve the aggravating circumstance, that is they have committed the violation(s) in an organized manner.

4. In cases where individuals committing administrative violations have not yet been identified, administrative sanctions shall be imposed on organizations. After executing sanctioning decisions, the sanctioned organizations shall identify individuals who have been at fault in committing the administrative violations, so as to determine legal liabilities of the violating individuals according to law provisions.

5. The procedures for confiscation and handling of material evidences and means of administrative violations shall comply with the provisions of Articles 60 and 61 of the Ordinance.

The management and handling of material evidences and means of administrative violations confiscated for requisition into the State's funds shall comply with the Finance Ministry's Circular No. 72/2004/TT-BTC of July 15, 2004 guiding the management and handling of administrative violations' material evidences and means confiscated for requisition into the State's funds.

6. Chief inspector of the specialized inspectorate under the Ministry of Post and Telemmatics defined at Points b, c and d, Clause 1, Article 4 of the Government's Decree No. 75/2003/ND-CP of June 26, 2003 on organization and operation of post, telecommunication and information technology inspectorate shall have competence to sanction administrative violations according to Clause 2, Article 28 of the Decree.

IV. ORGANIZATION OF IMPLEMENTATION

This Circular takes effect 15 days after its publication in the Official Gazette.

Any problem arising in the course of implementation should be promptly reported to the Ministry of Post and Telematics for consideration, amendment and/or supplementation.

Minister of Post and Telematics

DO TRUNG TA